Legalized, Not Prosecuted: Illegal Alien Who Stole Identity of Dead SSI-Collecting Baby Son

(CNSNews.com) - The U.S. government not only failed to prosecute an illegal alien who stole the identity of his dead baby son—who had collected SSI before he died—but granted the father legal status to work in the United States.

This one-time illegal alien, the Office of Inspector General for the Social Security Administration believes, fraudulently used his son’s Social Security Number for at least three years.

Yet, he was not prosecuted, according to the IG’s office, because his case did not meet the prosecutorial guidelines of the U.S. attorney for New Jersey.

In fact, this case might never have come to light had the IG not launched an audit aimed at uncovering the misuse of children’s Social Security Numbers.

One of its findings was that there were 365 dead children whose SSNs reportedly earned wages during the four years audited. “In three cases,” the IG determined, “the earnings were legitimate and earned by child actors who had died.”

But in the other 362 cases, people had misused the SSNs of dead children.

On their face, Social Security records indicated that these 362 dead children had worked for 626 different employers over the four-year period covered by the audit and earned a collective $9 million.

“Of the 362 deceased children, 326 were under age 7 when the wages were earned,” said the report. “In fact, 24 of the children had died at birth.”

In many cases, a parent or a relative stole the dead child’s SSN.

“In 59 of these cases, it is likely the deceased child’s parent used the child’s identity for employment,” said the report. “For these cases, we found that the reported names on the W-2s matched the parent’s names on the child’s Numident. For example, a child who was 2-years-old when he died in January 2000 had over $119,000 in wages reported for TYs 2007 through 2009 by a construction company.”

In 13 cases, the dead child had been receiving “disability benefits” before he or she died. The baby boy whose illegal-alien father posthumously stole his identity was one of these.

“For example, a child who was under 1-year-old when he died in July 2001 had over $114,000 in wages reported for TYs 2007 through 2009 by a company in the business, administrative, and support industry,” said the audit report.

“Before his death, the child was receiving disability benefits from SSA,” said the report. “Both the name and address on the W-2s matched the address in the child’s benefit records. Further, the child and his father shared the same first and last names, and the father was not authorized to work in the United States. Based on these factors, we believe the father, who lived with the child, was misusing his son’s identity for work purposes after the child died. However, because of privacy and disclosure limitations we did not share this information with the Department of Homeland Security.”

A footnote in the report cited Section 6103 of the Internal Revenue Code, which “provides that tax returns and return information are confidential,” as the reason the IG did not refer this case of an illegal alien using his dead baby’s SSN to DHS.

Another footnote, however, said the IG had referred all 362 cases involving the misuse of dead children’s SSNs to its own internal investigators.

“We referred the 362 deceased children cases to our investigators for review, who are investigating all cases that appear to be violations of the Social Security Act,” said the footnote. “As of March 2014, the investigators closed their investigation for 8 of the 362 cases. The remaining 354 cases were pending investigation.”

CNSNews.com contacted the IG’s office to find out whether there were still any ongoing criminal investigations in the cases of these 362 dead children--and whether anyone had actually been prosecuted in any of the cases. CNSNews.com also specifically asked the IG’s office about the case of the dead baby boy who had collected disability benefits during his brief life and whose identity had been stolen by his illegal-alien father.

Tracy B. Lynge, deputy assistant inspector general for external relations, told CNSNews.com that this illegal-alien father had not become the subject of a criminal investigation by the IG’s office because his case “did not meet the prosecutorial guidelines” set by the U.S. attorney’s office in New Jersey, which had jurisdiction over it.

She also said this same illegal-alien father, who was not prosecuted, was “authorized to work in the United States” after 2009—which was after he had been using his son’s stolen identity for at least three years.

“The USAO for the District of New Jersey would have prosecuted the case you asked about, of the father who misused his deceased infant’s SSN to perform unauthorized work in the United States,” Lynge said in a written statement.

“We fully developed this allegation, and found evidence of the following,” she said. “The man’s son died in 2001 at 5 months old, after having legitimately received SSI based on low birth weight until his death. In tax years 2007, 2008, and 2009, the man reported his wages under his son’s SSN. After 2009, the man became authorized to work in the United States, and has subsequently reported his wages under his own SSN.”

“Because this case did not meet prosecutorial guidelines set by the USAO, we did not open a criminal investigation,” Lynge said. “We did refer the matter to the Social Security Administration, which posted all wages reported under the infant’s SSN to the Earnings Suspense File (so that no benefits were earned from the FICA taxes paid from those wages).”

The Earnings Suspense File (ESF) is where the Social Security Administration accounts for Social Security taxes paid on a Social Security Number when the identity of the person for whom a W-2 form was filed does not appear to match the identity to whom the SSN on the W-2 was issued.

“We also forwarded the information to the IRS for any action they deem appropriate,” Lynge said. “We did not refer the matter to the Department of Homeland Security, because we are prohibited from doing so by Section 6103 of the Internal Revenue Code.”

Lynge indicated that investigations are still pending in other cases that the IG uncovered involving the misuse of a dead child’s SSN.

“Our Office of Audit referred 370 allegations to the Office of Investigations in January, 2014,” she said. “Investigative analysts in our Forensic Intelligence and Analysis Division have forwarded or will forward every allegation to the local OIG office in the jurisdiction where the suspected misuse took place. There, a special agent has reviewed or will review each allegation on its individual merits, and determine the appropriate action to take.

“They will refer every misuse case to the IRS and SSA for any administrative action those agencies deem appropriate, to ensure that IRS and Social Security records are accurate going forward,” she said.

“They also have the option of opening a criminal investigation and pursuing criminal prosecution if the facts warrant that action,” Lynge said. “At this point, though, most of the cases for both living and deceased number holders are still pending as our analysts review them and develop more information, such as current addresses.

“As you know,” she said, “these allegations came from an audit of SSA’s records, which may not have contained enough information to identify the individuals in question.”

Lynge pointed to another recent case that the Social Security Administration worked with the State Department to develop. In this case, the Department of Justice was able to get a guilty plea from an illegal alien who had stolen the identity of a dead child.

A July 7 press release from the U.S. attorney’s office in Houston said that Jesus Duenas-Barajas, a 53-year-old illegal alien from Mexico had pleaded guilty to making a false statement on a U.S. passport application and to “aggravated identity theft.”

Duenas-Barajas, according to the U.S. attorney’s office, was using “the identity of a boy who had died in 1978.”

“Evidence indicates Duenas-Barajas had been using the deceased boy’s identity since as early as 1986,” said the press release from the U.S. attorney’s office in Houston.

In response to inquiries from CNSNews.com, neither the main Justice Department nor the Office of the U.S. Attorney for New Jersey provided an explanation for why the case of the illegal alien father who stole the identity of his own dead baby son did not meet the U.S. attorney’s prosecutorial guidelines.

A spokesman for the U.S. Customs and Immigration Service told CNSNews.com that the agency could not comment on why, after 2009, this illegal alien was authorized to legally work in the United States because the IG’s office had not referred the case to USCIS.

Over the past fourteen years, the Government Accountability Office and the Office of the Inspector General for the Social Security Administration have published multiple reports about the massive numbers of W-2 forms filed on behalf of workers whose names do not match the Social Security Numbers they are using.

One employer, according to a report the IG published last August, filed 117,792 no-match W-2s in the three tax years from 2007 to 2009.